Moeti v Regional Court Magistrate: Regional Court 1, Pretoria North and Another (A172/19) [2020] ZAGPPHC 176 (29 April 2020)

IN THE HIGH COURT OF SOUTH AFRICA

GAUTENG DIVISION, PRETORIA

(1) REPORTABLE: NO

(2) OF INTEREST TO OTHER JUDGES: NO

(3) REVISED.

CASE NUMBER: A172/19

29/4/2020

ABNER MOTHEALE MOETI

Applicant

vs

REGIONAL COURT MAGISTRATE:

REGIONAAL COURT 1, PRETORIA NORTH

First Respondent

THE DIRECTOR OF PUBLIC PROSECUTIONS

Second Respondent

THE SENIOR PROSECUTOR: PRETORIA NORTH

Third Respondent

JUDGMENT: REVIEW APPLICATION

BAM, J

1. The applicant is accused 3 (there are 8 accused) in a trial before the Regional Court, Pretoria North. The applicant and his co-accused are arraigned on several charges. On 20 February 2018 the applicant lodged an application to the trial court, in terms of the provisions

of Section 157(2) of the Criminal Procedure Act, that his trial should be separated from the trial of his co-accused. The application

was refused. The applicant, aggrieved by the ruling of the trial court, lodged this special review application praying that the

Magistrate's refusal to grant the separation should be reviewed set aside, and substituted by an order that the trials should be

separated. The application is opposed by the respondents.

2. Although the record filed on behalf on the applicant is incomplete, concerning the State's first point in limine, it was suggested by the State that there is, nevertheless, sufficient information available before this court to enable us to deal with the matter, and that it would be in the interests of justice to dispose of it. We are in agreement.

3. The salient facts are common cause. The eight accused are facing serious charges, including conspiracy to commit armed robbery, impersonating police, armed robbery, attempted murder, theft of a motor vehicle, theft of police uniforms, and the unlawful possession of a firearm and ammunition, allegedly committed in September 2010. The trial commenced on 7 November 2012. All the accused pleaded not guilty. After the trial had proceeded for a long time, accused 1, on 27 July 2016, made certain formal admissions. The admissions concerned the commission of the alleged crimes and the involvement of the respective accused, including the applicant . On 20 February 2018, the applicant, represented by his present legal advisor, lodged the application for the separation.

4. In his founding affidavit to the review, the applicant's basis for this application seems to be two fold.

In the first place, that the admissions made by accused 1 now constitute proof of the alleged act s, against all the accused. (In this regard the applicant's legal representative, before this court, relied on the dictum in S v Molepa & Another 1979(2) SA 636 (A) (Wrong reference: should be S v Maleb en Andere 1979(2) SA 636(BH)), and S v Sibeke 1983 SA 745 (A) (Wrong reference.)).

Secondly, that the mind of the trial court is now contaminated by the detailed admissions concerning the involvement of the applicant. (In the latter regard the applicant relies on the dictum in 5 v Witbooi & Others 1994(1) SACR 44 (CK)).

The applicant contends that there is a clear likelihood that the complained about admissions of accused 1 will be prejudicial to him.

5. The applicant's legal representative, (who also appeared on behalf of the applicant in the Regional Court, in his written heads of argument, repeated the applicant's contentions concerning the admissions made by accused 1, including that the said admissions also include hearsay evidence, and submitted that a separation of trial should have been granted by the presiding Regional Magistrate in accordance with the applicant's request.

6. The applicant's case is that the presiding Regional Magistrate acted irregularly in not granting the applicant's application for

separation.

7. It is trite principle in the Law of Evidence that the admissions of any accused, made during the trial, have no evidential value against any co­ accused, and cannot be held as admissible evidence constituting proof of any of the allegations against the other accused. The only time such admission may have evidential value against co-accused is when the admission is confirmed under oath by the accused which made the admission, if and when the specific accused testifies during the trial.

8. The fact that one or more accused may implicate co-accused by way of admissions during the trial is a common occurrence. Experienced

presiding judicial officers, like Regional Magistrates, are surely very much aware of the applicable law, and to distance him/her-self

from considering any inadmissible evidence against any of the accused.

9. The Applicant’s complaint that the said admissions, which now allegedly contaminated the trial court’s frame of mind, also included hearsay evidence, is unfounded. It seems that this contention also concerns the admissibility of the admissions. It suffices to repeat that the said admissions of the co-accused were irrelevant as far as the applicant's liability is concerned. The complaint about the hearsay, in any event, is to say the least, ridiculous, and needs no further comment.

10. ln considering and evaluating the evidence adduced by the State, any court is obliged, taking into consideration the applicable law principles, to determine whether the State succeeded in proving any specific accused's liability on the admissible evidence. This is done at the end of the trial.

11. The applicant will have the opportunity to contest the admissions, if it is confirmed under oath by the first accused, and to adduce

contradicting evidence, if he wishes to do so. There is no presumption of prejudice.

12. Accordingly, we are also in agreement with the State's contention, in respect of the State's second point in limine, that the question of any possible prejudice of the applicant can only be adjudicated upon at the end of the trial. See 5 v Bapela and Another 1985(1) SA236 (A). (The case of S v Witbooi & Others 1994(1) SACR 44 (CK), referred to on behalf of the applicant, concerning a factual comparison and the Law of Evidence, differs materially from the present situation, and is not relevant. What is indeed relevant is the dictum in R v Bagas 1952(1) SA 437 (A) at 441E, quoted in Witbooi at 441E, concerning the discretion of the presiding officer).

13. ln general, it is not in the interests of justice to separate a joint trial where the accused are facing the same charges in circumstances

like the present. It seems that the only entity that may suffer prejudice is the State if such an order would be granted. A separation will cause a further, unnecessarily, delay in the matter where numerous witnesses have already testified.

14. The applicant failed to persuade us that the continuing of the trial in its present status will cause any prejudice to him.

15. We are satisfied that the Regional Court Magistrate was correct in exercising his discretion in terms of section 157 of the CPA against the applicant, refusing the application for separation.

AMENDED ORDER

1. The application for the review of the order of the trial court to separate the applicant's trial from that of his co-accused is

dismissed.

2. The trial Court's dismissing the application for separation of the applicant's trial from the main trial is confirmed.

AJ BAM

JUDGE OF THE HIGH COURT

J MASOPA

JUDGE OF THE HIGH COURT

29 APRIL 2020